On January 10, 2014, the United States Supreme Court granted a petition for certiorari in Pom Wonderful LLC v. Coca Cola Co., to decide whether the Ninth Circuit Court of Appeals erred in holding that a private party could not bring a false advertising claim under the Lanham Act with respect to a product label for a fruit drink that was regulated by and in apparent compliance with the Federal Food, Drug, and Cosmetic Act (FDCA).

The suit involved the Coca-Cola Pomegranate Blueberry fruit juice blend which consists largely of apple and grape juice (99.4 percent) blended with 0.3 percent pomegranate juice and 0.2 percent blueberry juice. Plaintiff, Pom Wonderful LLC (Pom), brought an action for false advertising under the Lanham Act, and related causes of action, alleging, in essence, that the use of the words Pomegranate Blueberry on the label misleads consumers into believing that the product consists primarily of pomegranate and blueberry juices. The label, however, was apparently in compliance with applicable Federal Food and Drug Administration (FDA) regulations which, as best as the Ninth Circuit could tell, permit a manufacturer to identify beverages using the name of a flavoring juice that is not predominate by volume. Coca-Cola successfully moved for summary judgment in the United States District Court for the Central District of California, and the Ninth Circuit Court of Appeals affirmed the judgment in Coca-Cola's favor, concluding that Pom's challenge to the name Pomegranate Blueberry under the Lanham Act was barred because it would create a conflict with FDA regulations and because the Court lacks the FDA's expertise in guarding against deception in the context of juice beverage labeling. 679 F. 3d 1170 (9th Cir. 2012).

In December 2012, Pom filed a petition for certiorari arguing that the Ninth Circuit erred by finding that the FDCA implicitly preempts the Lanham Act. It argued that statutory construction principles require that both federal laws be interpreted in a manner to give maximum effect to both, if possible. Pom also said the Ninth Circuit decision conflicts with the views of the other circuits to have considered the issue.

Coca-Cola filed its reply on February 22, 2013, arguing that Pom's petition was built on an erroneous premise and that the Ninth Circuit had reached the narrower conclusion that product labeling that is specifically authorized by the FDCA cannot be challenged under the general proscriptions of the Lanham Act. Coca-Cola also argued that allowing other litigants to assert the kinds of claims made by Pom would undermine the FDA's regulatory scheme and squander government resources.

In response to a request by the Supreme Court, the Solicitor General's office filed a brief agreeing with Pom that the Ninth Circuit had misconstrued the scope of the pre-emptive effect of the FDCA on false advertising claims brought under the Lanham Act. However, the government's brief also argued that the Court should not grant cert because there was no circuit split on the issue and the record in the case makes it unclear what aspect of the label was false or misleading. The Supreme Court granted cert notwithstanding this advice. A decision in this dispute is expected later this summer.